The Commissioner, Tiruvannamalai Municipality, Tiruvannamalai vs R. Govindarajan and two others

S.S. Subramani, J.—This Revision is filed under Art. 227 of the Constitution of India by the Commissioner, Tiruvannamalai Municipality

against the order in R.P. No. 1 of 1994, on the file of Principal District Court, Tiruvannamalai. First respondent herein applied for a permission to

the petitioner herein for getting sanction for putting up structures in his property. The same was rejected, and an appeal was preferred before the

Director of Town Planning, Madras. The Appeal was also dismissed. Against that order, the matter was taken before this Court in writ petition.

This Court set aside the order of the Director of Town Planning on the ground that the order of the Regional Deputy Director (Original Authority)

was not communicated directly to the petitioner and the first respondent was also not heard before an order was passed by the Director. The

matter was remitted back for reconsideration by the Director of Town Planning, Madras. After remitting the matter to the Director, notice was

issued to the first respondent herein to make his submissions. The Director asked the Joint Director to make an inspection of the site and to make

his comments. On personal inspection, it is found that there are no proper roads formed to gain access to the site. These remarks were

communicated to the respondent and he was asked to appear in person and also submit his objections, if any, to the same. First Respondent

submitted his objections to the Report stating that the local inspection was made in his absence and he wanted a joint inspection to be made.

Accepting the said request, the Director along with the first respondent, made a joint inspection on 23-3-1994. Even at the time of inspection,

respondent did not submit the records to show that there is any approved lay-out. The only plan that was filed was, a sub-division plan made by

the Taluk Surveyor. The Director informed the first respondent that as per the District Municipalities Act, a sub-division made by a Taluk Surveyor

or the survey authorities cannot be taken into consideration and any lay-out is not on the basis of survey, but it must be based on the approval of

the municipal authorities. Holding that there is no access to the property and there is no approved lay-out, the sanction sought for was declined.

Against that order, the respondent No. 1 filed R.P.I of 1994 before the District Judge, Tiruvannamalai. By the impugned order, the District Judge

set aside the order of the Deputy Director as well as the Director of Town Planning and held that the first respondent is entitled to get sanction

sought for and necessary direction was given to the petitioner herein to sanction the plan within a stipulated period. It is that order that is challenged

in this Revision under Art. 227 of the Constitution of India.

The main ground of attack by the petitioner is that the District Judge, Tiruvannamalai before whom a Revision was filed, was incompetent to

entertain a Revision and no Revision lies against the order of the Director, Town Planning. Learned counsel submitted that only an appeal lies to the

prescribed Authority under Sec. 79 of the Tamil Nadu Town and Country Planning Act, 1971 and the order passed by the District Judge is one

without jurisdiction. As against the said contention, learned counsel for first respondent submitted that there is no prescribed authority and none has

been named under Sec. 79 to entertain an Appeal and, therefore, the District Judge is competent to exercise the revisional powers.

After having considered the rival submissions, I have to agree with the contention of learned counsel for the petitioner. Whether it is a Revisional

Authority or Appellate Authority, the power must be exercised only if the same is conferred on that Authority. In this case, the District Judge is not

entitled to hear a Revision and no Revision lies against the order of the Director of Town Planning, i.e., second respondent. Chapter X of the Tamil

Nadu Town and Country Planning Act, 1971 deals with appeal, revision and review. Section 76 provides for appeal against any decision or order

taken or passed by the Planning Authority made under the provisions of Chapter VII of the Act and provides that the same has to be filed within

two months from the date of order communicated to him. Chapter VII deals with levy, assessment and recovery of development charges. Section

77 deals with appeal to be filed before the Tribunal. From a reading of that Section, it is clear that against an order passed by the Appellate

Authority under Sec. 76, a further appeal lies to the Tribunal under Sec. 77. Sec. 78 deals with Revision to the District Court. On a reading of

Sec. 78, it is seen that it is against the order of the Tribunal referred to in Sec. 77 that a Revision lies to the District Court. That means, it is only in

regard to matters concerned under Chapter VII, the District Court is also given power to consider in a Revision, i.e., levy, assessment and

recovery of development charges. Only in such matters, the District Court is given that power.

In this case, the respondent No. 1 wanted a planning permission. The same is considered u/s 49 of the Act. Sec. 79 deals with appeal to the

prescribed authority against any decision or order of the planning authority, made under Sec. 49 or under sub-section (1) of Sec. 54. A reading of

Sections 76 and 79 makes it clear that the power of the District Court are only to entertain a Revision against the orders which are dealt with under

Chapter VII. In this case, it is the refusal of the planning permission that is challenged. If that be so, the impugned order passed by the District

Judge, Tiruvannamalai was one without jurisdiction.

Learned counsel for respondent submitted that this question has already been answered by the District Court. Learned counsel submitted that

when no person has been named as prescribed authority, the District Judge has power under Sec. 78 of the Act. The said submission is without

any basis. As I said earlier, the power of revision or appeal cannot be assumed. It is a matter which has to be conferred by a statute. Merely

because an authority has not been named, the District Court cannot assume upon itself a jurisdiction which is not conferred by the Legislature.

Since I accept the contention of the learned counsel for revision petitioner, I can only hold that the order of the District Judge. Tiruvannamalai

was one without jurisdiction and the same is a nullity. In this connection, it may be noted that the very same respondent, on earlier occasion, filed

only a Writ Petition against the order of the Director, Town Planning with full knowledge that no revision lies to the District Court.

Both parties also agreed that on merits also, the matter could be heard. If so, this Court is entitled only to consider whether the order of the

second respondent was legal or not. Second respondent, with notice to the first respondent herein, jointly inspected the plot, and was convinced

that there was no approved lay-out. Section 198 of the District Municipalities Act, prohibits the Executive Authority from granting sanction unless

there is an approved layout and the site is also one approved under Sec. 197 of that Act. Section 197 says that if any person intends to construct

or reconstruct a building other than a hut, he shall send to the Executive Authority (1) an application in writing for approval of the site together with

a site plan of the land and (2) an application in writing for permission to execute the work together with the ground plan, locations, sections of the

building and a specification of the work. Sections 176 and 177 of the District Municipalities Act also provide for the approval by that Authority

regarding the lay-out which provides for streets, etc. The same is also to be approved by the Authority. In this case, first respondent was informed

that there is no approved lay-out. He only relies on a survey plan which the Authorities refused to consider. According to me, the reasoning of the

Authorities is justified. The survey plan or sub-division made by the Surveyor will not tantamount to an approved layout. A sanction has to be

obtained from the municipal authorities themselves. The first respondent has not cared to get such approval even though from the very beginning,

the Authorities were asking for the same. Under above circumstances, I do not find that the Authorities under the Tamil Nadu Town and Country

Planning Act have acted illegally. They have acted in accordance with law and the order also does not suffer from any infirmity. In the result, the

Revision is allowed. The order of the District Judge in R.P. No. 1 of 1994 is declared as one passed without jurisdiction. No costs. C.M.P. 9585

of 1997 for stay is dismissed consequently.